N.B. This is a Working Paper circulated for comment and criticism only. It does not represent the final views. of the Law Commission. The Law Cominission will be grateful for comments before 1 January 1974. All correspondence should be addressed to: J.C. R. Fieldsend, Law Commission, Conquest Hoiis e, 37/38 John Street, Theobalds Road, London WC1N 2BQ. (Tel: 01-242 0861, Ex: 47) The Law Commission Working Paper No 50 Inchoate Offences Conspiracy, Attempt and Incitement 5 June 1973 LONDON HER MAJESTY’S STATIONERY OFFICE 1973 @ Crown copyright 1973 SBN 11 730081 0 THE LAW COMMISSION WORKING PAPER NO. 50 Second Programme, Item XVIII CODIFICATION OF THE CRIMINAL LAW GENERAL PRINCIPLES INCHOATE OFFENCES : CONSPIRACY, ATTEMPT AND INCITEMENT Introduction by the Law Commission 1. The Working Party' assisting the Commission in the examination of the general principles of the criminal law with a view to their codification has prepared this Working Paper on the inchoate offences. It is the fourth in a series' designed as a basis upon which to seek the views of those concerned with the criminal law. In pursuance of - its policy of wide consultation, the Law Commission is publishing the Working Paper and inviting comments upon it. 2. To a greater extent than in previous papers in this series the provisional proposals of the Working Party involve fundamental changes in the law which, we think, will prove much more controversial than those made in the other papers. The suggested limitation of the crime of conspiracy to 1. For membership see p. ix. 2. The others are "The Mental Element in Crime" (W.P. No. 311, "Parties, Complicity and Liability for the Acts of Another" (W.P. No. 43) and "Criminal Liability of Corporationstt(1 .P. No. 44). V commit criminal offences and the suggested reformulation of the test for deciding whether conduct can amount to an attempt to commit a crime are perhaps the proposals most likely to give rise to debate and, upon these, we shall particularly welcome comment. 3. In paragraphs 8-14 of the Working Paper the Working Party reaches very emphatically the conclusion that con- spiracy should be limited to conspiracies to commit criminal offences: it sees no place in a criminal code for any offence of conspiracy to do something which is not itself criminal. Provisionally we agree with this proposal but we are anxious that, in a consultative document, the firm language in which it is expressed should not discourage discussion. We hope that those who comment on this paper will treat this conclusion as a purely provisional one. 4. As is foreseen in paragraph 32 of the Working Paper, we ourselves have begun our study of those areas of the law where conduct is criminal only if two or more conspire to do it. It is too early to make any certain forecast but our preliminary research seems to show that it is mainly in the field of fraud, which in the context of conspiracy has a wide connotation, that any serious lacunae would be ieft in the criminal law by a liniitation of conspiracy as is suggested and we propose to publish a Working Paper of our own on this subject as soon as possible. 5. The Working Paper also deals with the practice of joining a count for conspiracy with counts charging sub- stantive offences alleged to be the object of the conspiracy. 3 One of the criticisms that has been widely made of this practice is that it widens the scope of evidence admissible against each defendant; and it is argued that the evidence 3. Para. 54 of the Working Paper. , vi may be only remotely connected with some defendants, but of a highly prejudicial nature. The Working Party consider this objection to be not soundly based, and point out that the result is the same in all cases where a common enter- prise is alleged. It may be, however, that the practical effect of the rules is to work greater hardship in the case of conspiracy, where the definition of the offence includes the element of agreement. Proof of the agreement must often be by inference Erom a potentially wide range of facts. It is not always easy for a jury to distinguish between evidence relevant only to a charge of conspiracy and evidence relevant only to a change of a substantive offence. Some, but pehaps not all, of the risks of injustice which may arise from this source are dealt with in paragraph 54(iv) of the Working Paper. This is a matter on which our commenta- tors may wish to express their views generally. 6. In paragraphs 74-87 the Working Paper sets out the argument for a new approach to the problem of determining how the conduct required for the commission of an attempt should be defined. This conduct is defined as a "substantial step" towards the commission of the intended offence; it would be for the judge alone to determine whether the conduct - in question constituted a substantial step. A principal argument advanced in support of this change is that the present law leaves unpunished the conduct of the accused in such cases as E. v. Robinson, 5. v. Komaroni and Comer v. Bl~omfield.~Whether or not the result in each of these cases is to be regarded as unsafisfactory depends upon how far back from the completion of an offence it is thought right to extend criminal liability. The fact,however, that the sub- stantial step test would allow conviction in each of these cases does not demonstrate that the test is in itself satis- factory. The present law is admittedly imprecise, but it has 4. Para. 73 of the Working Paper. vii two features which seem to be valuable. The first is that it requires a line to be drawn between acts of prepar- ation and acts constituting an attempt. The second is that, there is to be a conviction, it is ultimately for the jury to decide whether or not the conduct is sufficiently proxi- mate to amount to an attempt, as clearly emerges from the judgment of the Court of Criminal Appeal in E. v. W.5 If, as has been suggested6, the whole question of what conduct amounts to an attempt must be decided as a matter of common sense in each particular case, it is for careful consideration whether the definition of an attempt can be better formulated than in terms of adequate proximity determined by a properly instructed jury. 7. Comment should be addressed to - J.C.R. Fieldsend, Law Commission, Conquest House, 37-3% John St., Theobalds Road, London, WClN ZBQ. and it would assist the Commission if it were sent by - 1st January 1974. 5. (1964) 48 Cr. App. R. 98. 6. See Smith & Hogan, Criminal Law, 2nd ed;, p. 170. viii MEMBERSHIP OF THE WORKING PARTY Joint Chairmen: Mr Derek Hodgson, Q.C. Mr Norman Marsh, Q.C. Law Commission member: The Hon. Mr Justice Cooke Members, other than * The Rt. Hon. Lord Justice Edmund Davies representative S of' the Law Commission: Mr T.R. Fitzwalter Butler Mr J.H. Buzzard Mr A.E. Cox Mr R. du Cann Mr J.N. Martin, O.B.E. * Professor Glanville L. Williams, Q.C., LL.D., F.B.A. I Mr F.L.T. Graham-Harrison. C.B. i (Home Ofiice) alternate ( Mr J.H. Walker (Home Office) ( ( * Sir Kenneth Jones, C.B.E. a1 ternate ( (Home Office) - ( -+ Mr J. Nursaw (Home Office) Secretary: Mr J.C.R. Fieldsend (Law Commission) Assistant Secretary: Mr C.W. Dyment (Law Commission) * Also members of the Criminal Law Revision Committee. + Secretary of the Criminal Law Revision Committee. ix X CONTENTS Paras. Page I INTRODUCTION 1-5 1 I1 CON SP IRACY 6 -62 4 1. Introduction 6 -14 4 Should criminal conspiracy be confined to agreements to commit offences? 8 -14 6 2. The object of a criminal conspiracy 15-31 10 3. Elements of the offence of conspiracy 33-36 19 4. Conspiracies with participants exempted from liability 37-43 23 5. "Inchoate" conspiracy and con- spiracy to commit other inchoate offences 44-47 27 6. The mental element 48-53 30 7. Consummated conspiracies 54-58 34 8. Conviction of one only of two or more offenders 59-61 40- Sumary 62 42 III ATTEMPTS 63-91 44 1. Should the concept. of a general "atteipt" be retained? G3-67 44 2. The scope of attempts 68-77 48 3. Elements of the "substantial step" test 78-89 55 4. The mental element 88-89 59 5. Successful attempts 90 61 Summary 91 62 IV INCITEMENT 92-102 64 1. Introduction; the present law 92-93 64 2. Should there be an offence of incitement? 94-95 66 xii 3. Problems arising from the present 1aw 96-101 68 Summary 102 72 V PROBLEMS COMMON TO INCHOATE OFFENCES 103-143 73 1. Should inchoate offences apply to summary offences? 103-110 73 2. Penalties 111-125 79 3. Impossibility 126-136 90 4. The defence of withdrawal 137-143 99 APPENDICES RELATING TO THE LAW OF ATTEMPTS - Appendix A English law 104 Appendix B Indian Penal Code 106 Appendix C Canadian Criminal Code 109 Appendix D New Zealand Crimes Act 1961 110 Appendix E Draft Criminal Code for the Australian Territories 111 Appendix F American Law Institute Model Penal - Code 113 Appendix G European Criminal Codes 115 xiii I INTRODUCTION 1. This Working Paper in the series covering the general part of the criminal law deals with the three common law offences of conspiracy, attempt and incite- ment.